Pantano v The Queen

[1991] HCATrans 288

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl19 of 1990

B e t w e e n -

NICHOLAS PANTANO

Applicant

and

THE QUEEN

Respondent

Application to remove

solicitor from the record

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 OCTOBER 1991, AT 10.04 AM

(Continued from 12/9/91)

Copyright in the High Court of Australia

Pantano(2) 6 10/10/91

MR s. IRVIN:  Your Honour, I appear for the respondent in

this matter. (instructed by the Director of Public

Prosecutions, New South Wales)

HER HONOUR:	Any appearance for the applicant?
THE DEPUTY REGISTRAR:	Not as far as I know, Your Honour.
HER HONOUR:	And Mr Pantano is not present, I take it, no.
THE DEPUTY REGISTRAR:	No.
HER HONOUR:	I think, Mr Irvin, do you have any objection to

the matter proceeding with only yourself present?

MR IRVIN:  Your Honour, I am quite happy to wait a moment to

see if anybody turns up.

HER HONOUR:  Yes, thank you. Perhaps we will call the

second matter and we can interpose this matter if

Ms Johnson appears.

MR IRVIN:  Thank you, Your Honour.

AT 10.05 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.37 AM:

MS L. JOHNSON:  Your Honour, I appear in this matter for

Mr Pantano. Your Honour, I apologize for being

late. It was due to circumstances beyond my

control, not the least of which is that the High

Court Registry is not marked anywhere in the

supreme court and none of the many - - -

HER HONOUR:  It is not part of the supreme court,

Ms Johnson. It has nothing to do with the supreme

court.

MS JOHNSON:  Yes. What I mean, Your Honour, is that there

is no indications anywhere as to what level it is

on and I actually could not remember it.	I
apologize in any case, Your Honour.

HER HONOUR:  Thank you, Ms Johnson.

Ms Johnson and Mr Irvin, on the last occasion

this matter was before the Court, I made certain

directions in consequence of which a letter was

forwarded to Mr Pantano, cl- The Superintendent at

Pantano(2) 7 10/10/91

Silverwater Prison and a telephone call was then made to the Registry but the conversation was quite

indistinct. It could not be understood. A further

letter was sent to Mr Pantano on 4 October and

nothing further has been heard, including today.

Have you heard anything, perhaps, from - - -?

MS JOHNSON:  No, Your Honour, I have not heard anything at

all.

HER HONOUR:	Mr Irvin?
MR IRVIN:	I certainly have not, Your Honour.
HER HONOUR:	Mr Pantano, having clearly been acquainted with

the matter and the issue, there would seem to be no

reason why an order should not be made as sought,

is there?

MR IRVIN:	As Your Honour pleases.
MS JOHNSON:	I do not oppose that course, Your Honour.

HER HONOUR: Well, it is your order, Ms Johnson. It will be

for those whom you represent, Mr Irvin, to take

some further action in this matter, I presume.

MR IRVIN:  Your Honour, my understanding is that if we wish

to have the prisoner actually brought here to

ascertain what he wishes to do with his appeal,

whether he wishes to proceed with - - -

HER HONOUR:  Yes. Well, you should make another

application, I think, do you not?

MR IRVIN: Yes, Your Honour, that can be done but my

understanding was that - well, I know in the other

courts, it is a registry function to actually put

the proceedings at work to bring the prisoner

before the Court from the gaol.

HER HONOUR: Well, that may be so. At this stage, the only

matter of which Mr Pantano has been informed and

given notice is Ms Johnson's desire to be removed

from the record. The normal course here is if you

wish the application to be struck out for want of

prosecution, you apply accordingly, it having been

instituted - it has been instituted, has it,

Mr Registrar? An application has been filed, has

it not?

THE DEPUTY REGISTRAR:  An application for special leave has

been filed, yes, Your Honour.

HER HONOUR: Yes. And at that stage an order can be made.

MR IRVIN:	I understand, Your Honour.
Pantano(2)	10/10/91
HER HONOUR:	An order can be made ex parte, can it?
THE DEPUTY REGISTRAR:	Your Honour, as you were just

pointing out, the only application before the Court

at the moment is an application under Order 7

rule 7. I would have thought that any other

application such as to dismiss for want of

prosecution would lie within the prerogative of the

respondent.

MR IRVIN: Yes, I do not dispute that, Your Honour.

HER HONOUR:  Yes, but can an order be made to bring the

prisoner here ex parte?

THE DEPUTY REGISTRAR:  Yes, that has been done, Your Honour,

yes.

HER HONOUR: Without the - - -?

THE DEPUTY REGISTRAR:  Without the need for the

respondent's

HER HONOUR: Without the need for the applicant to appear.

THE DEPUTY REGISTRAR: That is correct, Your Honour, yes.

HER HONOUR:  Yes. Well, you understand that, Mr Irvin, that

it can all be done in due course?

MR IRVIN: Yes, Your Honour.

HER HONOUR:	In that case, there will be an order as sought.
MS JOHNSON:	Thank you, Your Honour.

AT 10.41 AM THE MATTER WAS ADJOURNED SINE DIE

Pantano(2) 9 10/10/91